Courtesy of the American Bar Association
by James C. Sherlock
In the United States, the first references for judges and attorneys are the federal and state constitutions.
The Constitution of the United States, in its First Amendment, requires that:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press.
The Constitution of Virginia goes much further:
That the freedoms of speech and of the press are among the great bulwarks of liberty, and can never be restrained except by despotic governments; that any citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; that the General Assembly shall not pass any law abridging the freedom of speech or of the press, nor the right of the people peaceably to assemble, and to petition the government for the redress of grievances.
In service to those constitutions, the Foundation for Individual Rights and Expression (FIRE) may be the most vital non-profit in America.
It defends free speech, academic freedom, due process and freedom of the press for conservatives and progressives alike, picking up the banner cast away a decade or more ago by the American Civil Liberties Union.
Yesterday came a comment here on BR that has since been edited away.
I do not, however, believe in consequence-free speech (as many on the Right clearly do). If you are going be be [sic] provocative in your speech, you might expect reaction from your audience after a time.”
The author is at least observant.
Provocative political speech — with virtually every subject now being considered political — regularly provokes reactions, often repressive and sometimes violent, in the public square.
I disagree with his opinion on expectations, however.
The public square is not a back alley. It is where repressive and violent reactions to speech should be least-expected and never tolerated.
If they are tolerated, we have no society, no democracy, no ordered community of any kind.
Progressives. On April 6, 2023
protestors at San Francisco State University attempted to shut down an event featuring former NCAA swimmer Riley Gaines, who was invited to campus to talk about gender and sports.
While Gaines spoke, protestors drowned her out by stomping and yelling inside the room and in the hallway. Police later attempted to escort Gaines out as the crowd followed, screaming and shouting until police locked her in a secure room. Gaines, invited by the school’s Turning Point USA chapter, reportedly remained trapped inside the room for almost three hours until the protestors finally dispersed.
Open the link and click on each of the two videos there.
Ms. Gaines had the audacity to attempt to speak in opposition to biological males competing against females in sport. “Repressive tolerance” drowned her out and chased her behind a locked door.
Certainly no “consequence-free” speech for her.
Ms. Gaines afterwards wrote:
Imagine if the roles were reversed and a group of white, conservatives ambushed someone within the LGBTQ community, physically assaulted them, and held them for ransom for 3 hrs…
There would be arrests and repercussions for the perpetrators and administration who allowed this.
Indeed. San Francisco State, always vigilant lest free speech break out, is now
investigating history professor Maziar Behrooz for showing a drawing of the Prophet Muhammad while teaching a lesson on the history of the Islamic world last fall.
A student reportedly “strongly objected” and filed a complaint with the university.
Turns out that the “image of Muhammad” complaint is a college trend.
Virginia campuses. It can’t happen here, can it?
At Stanford, the location of the infamous recent shout-down of a presentation by a federal judge, in a recent survey of students revealed that 33% believe that “shouting down a speaker to prevent them from speaking on campus” is always or sometimes justified.
Stanford law students and their Assistant Dean for DEI did just that. (Providing partial answer to the enduring question: “What do DEI staffers do all day?”).
At the University of Virginia, the answer “always or sometimes justified” was given to that question by 39%. Only 31% responded that shouting down a speaker to prevent them from speaking on campus is never acceptable.
And UVa somehow finished 24th out of 203 colleges and universities ranked for free speech.
Apparently because they are relatively tolerant of one another, but outsiders beware.
Stanford, the scene of the federal judge shout-down by law students, ranked 106th. All law students and staff subsequently were required by the law school to undergo a free speech stand-down. (See the image at the opening of this article).
Virginia Tech finished 150th, solidly below average and a warning to students, faculty and outsiders alike.
At Tech,
Bias incidents are expressions against a person or group because of the person’s or group’s age, color, disability, gender (including pregnancy), gender identity, gender expression, genetic information, national origin, political affiliation, race, religion, sexual orientation, veteran status, or any other basis protected by law. [emphasis added]
Examples of bias-related conduct to be reported at Tech include “hosting a culturally-themed party” and jokes about old people or Democrats.
Many might not have known that “expressions” like Mexican night at the student cafeteria or Irish jokes are “reportable bias incidents.” Now they have been forewarned.
It is thus understandable that Tech students’ concerns were dominated by what they saw as limits on their own free speech on campus.
At that school, 57% of students reported they were very or somewhat uncomfortable expressing their views on a controversial political topic to other students outside of class. Forty-four percent were uncomfortable doing so in class.
Results were “above average” at the College of William and Mary (12th); and George Mason (17th); average at Washington and Lee (70th). VMI was not rated.
Conservatives. I looked for a recent example of conservatives shouting down progressive campus speakers but I failed to find one. Perhaps readers can.
In the political realm, we saw a bad reaction this past week by the Tennessee legislature. That is what progressives wanted to discuss yesterday.
And I don’t blame them.
It was a mistake for which there is no excuse, and “whataboutism” always finds a place with folks facing uncomfortable facts on their own side.
Bottom line. Both the progressive and conservative actions described above were wrong.
I find no “context” that explains either of them.
But only the progressive actions at San Francisco State, Stanford and innumerable other campuses have blocked and shut down speech in real time.
In America, only progressive actions against free speech have repeatedly involved assault.
I am one of those who believes we must have “consequence-free speech” in America, absent incitement to dangerous acts (e.g. yelling “fire!” in a crowded theater) or violence.
Law students and attorneys who do not share that belief should consult the federal and state constitutions they will swear or have sworn to defend.
Law schools and bar associations should reconsider the membership of the recalcitrant.
